Judge fines Rosenthal for contempt

Slap!

A federal judge on Friday ordered former Harris County District Attorney Chuck Rosenthal to pay $18,900 in sanctions after finding him in contempt of court for deleting more than 2,500 e-mails that had been subpoenaed for a federal civil rights lawsuit.

Additionally, U.S. District Judge Kenneth Hoyt determined Scott Durfee, general counsel for the district attorney's office, was jointly responsible for paying $5,000 of that, finding Durfee failed to appropriately advise Rosenthal on how to comply with the subpoena.

Both Rosenthal and Durfee have until April 30 to pay their respective fines, according to the judge's order released late Friday afternoon.

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Whether the county pays those sanctions with taxpayers' money is a question to be decided by Commissioners Court. The court must determine whether paying the sanctions would serve a public purpose, said County Attorney Mike Stafford.

"They have to be able to articulate a public purpose and decide that's worth paying it. That's the general rule of law," Stafford said, adding that he does not know what the Commissioners Court will do.

Mark Bennett, president-elect of the Harris County Criminal Lawyers Association, said he cannot see what public purpose would be served by the county paying the sanctions.

"I don't have any reason to think the county's going to do the right thing here, which is to say, 'Look, you got yourself into this mess, you pay it yourself,' " Bennett said.

Bennett noted the county has already approved spending $227,000 to defend Rosenthal in court.

Mark expands on his remarks here. I agree with him completely. I see no reason why Commissioners Court should take Rosenthal off the hook for this fine. Rosenthal has already cost the taxpayers plenty of money. It's time he paid his fair share of it. I'm sympathetic to the Court paying for Durfee's fine, but if they cave and pick up the tab for Rosenthal, I'm going to be pissed.

In blistering and scathing language, Hoyt's court order rebuked Rosenthal for knowingly violating an Oct. 31 subpoena seeking his e-mails.

Hoyt criticized Rosenthal for showing "an intentional willfulness" to disobey the law.

"This conduct reveals a man confident in his status, entrenched in his brand of law," Hoyt wrote. "He would not or could not acknowledge an authority beyond himself."

Various contradictions and misrepresentations made Rosenthal's testimony unreliable and incredible, Hoyt said. "The court views his conduct as venomous and hostile to the judicial process," Hoyt wrote.

Rosenthal gave several explanations for why he deleted the

e-mails, Hoyt noted, such as believing his general counsel had printed hard copies of the documents and claiming he thought the documents were preserved on the computer network's backup tapes.

Rosenthal also later testified that he deleted the e-mails to increase his work efficiency and to free memory space on his computer, Hoyt said.

"There is no evidence that Rosenthal's computer memory space was threatened by additional e-mails or that, in fact, it was short of space. Hence, these reasons -- all implausible inconsistencies -- defy the law of common sense," Hoyt wrote.

The judge's comments about Rosenthal, though stinging, were accurate, said Pat McCann, current president of the criminal lawyers association.

"When you get to this point, I don't think the judge had any choice but to make it clear to Harris County officials that they are not beyond the reach of the law," McCann said.

The full contempt order is here (PDF). I think Judge Hoyt hit on all the main points, and I think McCann summed it up accurately. Now it's just a matter of Commissioners Court doing their part.

While Hoyt said there is no evidence Durfee committed obstructive acts, he found the evidence is "abundant and compelling" that Durfee failed to advise Rosenthal as his professional and ethical duties required.

Durfee showed a "deliberate indifference" to the court's orders and the subpoena by not advising Rosenthal to preserve the subpoenaed documents and remaining silent when he learned that Rosenthal had deleted the e-mails, Hoyt said.

By failing to bring Rosenthal's actions to light upon becoming aware of them, Durfee violated the rules of professional conduct that apply to all attorneys, Hoyt said.

"In sum, while it is undisputed that Rosenthal deleted the e-mails sought by the subpoenas, it is also apparent that copies of many of these e-mails were belatedly produced and/or lost as a result of Durfee's dereliction of duty," Hoyt wrote.

McCann said he was saddened by Durfee's punishment.

"I think it is, at best, difficult to deal with a client who believes that he is smarter than a federal judge," McCann said, referring to Rosenthal. "When that client is not only a client, but your actual boss who hires and fires you, I think that puts a very different take on your relationship."

I'm sympathetic to the position Durfee was in. It's even made me rethink some of the things I've said about Kelly Siegler's failure to do anything about (as she claims) Rosenthal's impaired judgment. I still think she showed a lack of courage, as she had a lot more freedom to act than Durfee would have had; if nothing else, she could have had a few off-the-record talks with a reporter or two. But I can appreciate the bind someone can be put in when they have a bad boss who's behaving erratically.

On a tangential note, with the arrival of a new interim DA and her reassignment to another division in that office, this is no surprise.

Chuck Rosenthal's former secretary has resigned rather than report to the new job to which she was assigned by his replacement.

Kerry Stevens, who became widely known as the object of Rosenthal's desire following the release of hundreds of his private e-mails, told the district attorney's office that she was retiring effective Monday. She has been on authorized leave since she was informed she would be reassigned to the grand jury division.

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Kenneth Magidson, recently appointed to fill the remainder of Rosenthal's term, expressed appreciation to Stevens for her years of public service and wished her well in future endeavors.

Stevens could not be reached for comment.

Stevens, 56, became a character in the drama surrounding Rosenthal's downfall not only through their close relationship but because of questions of possible preferential treatment. At $89,500, her salary was higher than that of executive assistants for most local public officials, including the mayor and county judge, and she also received the use of a county car and free gas. Rosenthal approved an $11,500 raise for her just weeks before he stepped down.

I feel a certain amount of sympathy for Kerry Stevens. While Chuck Rosenthal clearly acted like a jackass, she kept her email behavior on the professional side, at least as I recall from the original leak of all that stuff. She certainly benefitted from his besotted behavior, so my sympathy only goes so far, but I think she deserved better from this embarrassing episode. Here's hoping she can find something quiet and unobtrusive to do so that her name fades from the public memory and she can get on with her life.

Posted by Charles Kuffner on March 29, 2008 to Local politics